In the contemporary market of international legal scholarship Robert Kolb occupies a prominent place; in all likelihood he is the individual author who has the most goods to supply. In this new work, whose aim is no less than to set forth a modern legal hermeneutics of public international law, he consolidates his record and reputation as a prolific author. This is all the more the case considering that, contrary to what the ordinary meaning of the first word of the subtitle – a ‘sketch’ – may suggest, the book is roughly 1,000 pages long. This exceptionally gigantic volume could be a reason for the reviewer to follow Oscar Wilde's vow not to read the books to be reviewed, in order to avoid any prejudice. Yet another temptation is to resort to the techniques recently studied by Pierre Bayard,Footnote ¹ which enable one to speak knowledgably about books one has not read. Since the topic is so fascinating, however, this reviewer has resisted both temptations. Starting from the assumption that scientific production is not to be evaluated by weight, a few critical remarks are in order.

Let us begin with some words on the interest of such a study. It is well known that doctrinal production is not regulated by the laws of the market. The goods are rarely offered in response to any real demand, other than the authors’ demand for scientific recognition and bolstering of their own reputation. However, the topic of interpretation is somewhat special. It is generally considered to have been widely studied in all respects. Consequently there should be nothing interesting or new one can say about it. This widely held view may be explained more by the narrow-mindedness of those who profess it than by the actual state of things. Be that as it may, those who decide to embark upon a study of the question of interpretation invariably feel compelled, as if they were performing a rite, to justify their decision in the light of the impressive number of writings which already exist on this topic.

Against this backdrop we must be grateful to Robert Kolb for not indulging in the above-mentioned rite – which makes little sense – and for having had the courage to broach a topic so generally regarded as having been studied in its entirety. Having said that, we all know the dangers presented by the study of a topic on which there is already an exceptionally rich literature. First, there is the famous anxiety of influence, which Harold Bloom describes as discovering, with horror, that what one has written is but a copy of something that had already been written by somebody else.Footnote ² There is also another danger, more daunting still, namely the potential loss of the ‘natural advantage’ which an author enjoys over the reader. An author is usually one lap ahead of the reader: he or she knows the subject, takes the initiative, elaborates the structure, and develops the book accordingly. By contrast, the reader is supposed to be in the dark, simply ‘following’ the author and discovering, step by step, the line of reasoning that has been placed before him. Different is the case of legal interpretation, knowledge of which is an integral part of the collective memory of lawyers. The author must, therefore, in order to be successful, stun the reader and restore the ‘natural advantage’ which would normally be his.

Whether Robert Kolb has accomplished this task remains open to doubt. While the amount of work and research put into this volume is exceptional, originality is certainly not the most prominent quality of the book, even if defeating the classical conception of interpretation is one of the author's proclaimed aims. Some would agree with Paul Valéry that there are no original authors anyway, and that originality is a matter of stomach: a non-original author being one who badly digests the substance of the work of others, leaving the different fragments easily recognizable.Footnote ³ In any case, in a work on legal interpretation which came out in 2006, the reader would legitimately expect an approach which, if not completely new, sets out to investigate less explored avenues. To draw on insights from other disciplines in order to present an old phenomenon in a new light would have been a most welcome choice. Unfortunately, such expectations are generally not met and in the light of the promise inherent in the title of the book this is particularly disappointing.

It is, for example, difficult to understand how a work expressly bearing on legal hermeneutics can, without any justification whatsoever, neglect to use modern philosophical hermeneutics, in particular the works of Hans GadamerFootnote ⁴ and Paul Ricoeur.Footnote ⁵ The former's work is all the more relevant given his important contribution to legal hermeneutics, especially on the very object of the book, namely the dichotomy between the interpretation and the creation of law.

The presentation of modern legal hermeneutics is also somewhat curious. Such thinkers as Ronald Dworkin, Stanley Fish, Neil McCormick, Paul Amselek, Pierre André-Côté, and Jacques Chevalier, whose original thoughts have greatly enriched the understanding of the phenomenon of interpretation, seem to be of no interest to the author. Yet the work of other authors who, with the exception of Robert Alexy and Friedrich Müller, are largely unknown outside the German-speaking world, is specifically discussed. It is difficult to understand the logic behind this choice, unless the author decided to make do with materials at his immediate disposal.

Another flaw in the work should be underscored, as it is characteristic of a certain doctrinal attitude. The author religiously adheres to the venerable tradition of francophone scholarly circles of entirely ignoring some important theoretical debates launched mainly in the United States. This leads to neglecting such movements as Critical Legal Studies and Law and Literature, consideration of which is indispensable for any serious theoretical study of legal interpretation. Such an extreme form of symbolic violence which consists of acting as if other theoretical approaches did not exist is not particularly productive and can only widen the (already considerable) gap between the various schools of thought.

Finally, one should emphasize the broad conception of interpretation that the author has adopted. In an essay with a strongly evocative title Paul Amselek once rebelled against the inappropriate use of the concept of interpretation, positing that interpretation should be reserved strictly for law in written form.Footnote ⁶ International law writers such as Verzijl or BosFootnote ⁷ adopted the same position. Robert Kolb follows most closely the approach of Charles de Visscher.Footnote ⁸ He does not limit his study to the interpretation of written law and examines in addition the interpretation of custom and general principles of law. The arguments made by the author to justify such an extensive approach (pp. 219–22) seem to be too cursory in view of the importance of the issue.

These general shortcomings aside, the work is the product of an enormous research effort. Even if Robert Kolb has already earned a reputation as a peerless worker, one cannot but be impressed by the volume of practice studied. The case law of the World Court and international arbitral practice is faithfully and meticulously examined. The author has gone even further and studied the practice of certain regional tribunals such as the European Court of Human Rights, the Inter-American Court of Human Rights, and the European Court of Justice (this last in a comparatively less systematic manner), along with the case law of certain international criminal tribunals and national tribunals, in order to support his argumentation. This is undoubtedly the principal and exceptional quality of his work, a work in which interested researchers and practitioners (particularly those appearing before international or national tribunals) will be able to find a mine of references on almost every aspect of interpretation in public international law.

The presentation of techniques and means of interpretation is also impressive. However, one also finds in this part of the work things which are too well-known to be interesting and ideas too readily accepted to persuade a critical mind. The most blatant example is the author's plea for the doctrine of interpretation based on ordinary meaning and textuality. Of course, the author is in good company here, as all the mainstream doctrine is on his side. But this is only an additional reason for perplexity. Even if the author adopts some of the usual precautions, the functions assigned to the text (‘assurer que le texte ne [soit] pas manipulé par des éléments extrinsèques’ (p. 412), ‘[fonction de] présomption en faveur de ce que le texte contient par rapport à ce qu'il ne contient pas’ (p. 413)) are not to be taken for granted. International lawyers obviously need to be reminded of some elementary lessons of contemporary philosophy of language, such as the fundamental contention that the distinction between that which is inside and that which is outside the text is not determined by the text itself. In fact, the distinction is itself interpretative and no semantic autonomy of the text (be it prima facie or not) can be envisaged. As the former European Commission of Human Rights once wisely put it, what is ‘found’ in a text depends on what is sought.Footnote ⁹

Another shortcoming of this part of the work is its somewhat anachronistic nature. It is particularly odd that, despite the frantic debate on the fragmentation of international law,Footnote ¹⁰ the author does not pay any substantial attention to the issues raised by Article 31(3)(c) of the Vienna Convention on the Law of Treaties. Regrettably, no explanation is given for this fairly incomprehensible lacuna. One can only speculate that this may be due, at least in part, to the slightly outdated character of the bibliography used by the author.

The conception of interpretation offered by the author merits a few remarks as well. Kolb envisions interpretation as a complex operation composed of several stages. First, there is the terra firma of positive elements consisting of the facts and canons of interpretation (rules, principles, techniques, and maxims). This stage is joined to another which is built around fundamental values and a consideration of the results of the interpretative process. The author demonstrates that the operation of interpretation is impregnated with diverse values. These values may be general values, such as the equality of states or legal security; they may also be more concrete, such as the stability of borders, the proper administration of justice, and so on. Interpretation is also influenced by the interpretative result, which indicates that legal actors are not neutral as to the choices with which they are presented. At the top of this operation lies an ideological element which invites a choice between the interests of the individual states and the general interest embodied in the concept of ‘international community’. If this dialectic between the individual interest and the general interest is familiar (it is a well-known paradigm in the interpretation of the constitutive instruments of international organizations), the generalization of this to apply to all interpretative operations is rather new.

Needless to say, this intellectual construction falls within a scientific practice which presupposes, as Bourdieu once said, ‘putting a scholar inside the machine’.Footnote ¹¹ In other words, such a doctrinal posture requires ‘picturing all social agents in the image of the scientist’,Footnote ¹² placing ‘the models that the scientist must construct to account for practices into the consciousness of agents’,Footnote ¹³ and operating ‘as if the constructions that the scientist must produce to understand practices, to account for them, were the main determinants, the actual cause of practices’.Footnote ¹⁴ But, nowadays, nobody is alarmed at this widespread practice, described by its practitioners in their most lucid moments as ‘a highly useful exercise in rationalization’. Let us then evaluate this construction according to its own canons. First of all, it is to be regretted that this issue is not treated more extensively. Although the author proposes the extension of the concept of law and constantly criticizes the limits of positivism, only 50 pages out of about 1,000 are devoted to what he calls ‘extra-positive elements of interpretation’. This discrepancy between the ‘word’ and the ‘deed’ greatly undermines the credibility of the author's stated anti-positivistic philosophy.

Moreover, even if the unity of the interpretative process is emphasized by the author, one wonders whether his ‘three-stage rocket’ interpretation theory (p. 927) does not lose sight of the interpenetration of these three dimensions. After all, values and ideologies are not only present and operative at the moment of interpretation, but also at the time of making the law, by directing, through the medium of what the author calls ‘positive elements’, the interpretative activities of legal operators. Similarly, values and ideologies are not integrated into the interpretative process at a later stage, as if they were added to a prior intellectual operation carried out without their influence. They undoubtedly affect the process from the beginning, by imposing a certain way of dealing with the ‘positive elements’.

The relationship between the interpretative activity and the legal culture of the environment in which it is carried out (p. 133) is another aspect of the author's theory of interpretation which deserves to be mentioned, although it does not occupy much space in the book. It would have been desirable to develop this aspect further and see whether it could not explain, for example, the interpretative dynamism of certain international tribunals such as the European Court of Human Rights or the European Court of Justice.

Finally, on the issue evoked in the title of the book, the author demonstrates that the distinction between interpretation and creation, between the pure and simple statement of law and its development, cannot be clearly delineated. Despite the importance which the official legal discourse attaches to this distinction, it is nonetheless a distinction of degree, not one of kind. Any interpretation inevitably involves a creative dimension and no creation is made ex nihilo but rather hinges on interpretative tools. The author shows that this distinction results from the breadth of argumentative chains: in a normative space which is sparsely populated, the creative dimension will be more important, with the use of general principles, teleological and analogical reasoning, interest-balancing techniques, and so on.

The limits of a book review cannot do justice to every single aspect of this voluminous work, which may well become an indispensable point of reference, particularly for practitioners of international law, as was the case with the famous Book II, Chapter XVII, of Vattel's Le droit des gens ou principes de la loi appliqués à la conduite et aux affaires des nations et des souverains, arguably the most cited doctrinal work before international tribunals.